Federal Court Decisions

T-938-95

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Applicant,

and

JOHANN DUECK,

Respondent.

REASONS FOR DIRECTIONS

     On October 16, 1997, I issued directions in this file and in files T-866-95 (Helmut Oberlander) and T-569-95 (Erichs Tobiass) to the effect that henceforth the outstanding preliminary matters in each file would proceed independently. I did so despite the rather complacent view expressed by counsel for all the parties that the preliminary matters should continue to proceed jointly as the underlying issues are the same in all three cases.

     My review of the pending motions in each these files does not bear this out. If the only outstanding matter was the Minister's motion for Directions, which has been filed in each case, joint case management proceedings would be justified. But these are not the only preliminary matters that have to be dealt with at this time.

     A motion for disclosure of documents and information is outstanding in the Tobiass and Oberlander matters; no such motion has been filed in the Dueck matter. Moreover, the motions that have been filed in the Tobiass and Oberlander matters are framed differently. The Tobiass motion seeks the production of specified documents and particulars in addition to various other relief including:

-      an order that all Charter issues be dealt with at the commencement of the reference,

-      an order that Tobiass be allowed to move to strike out pleadings,

-      an order that all admissions relating to criminal behaviour be declared inadmissible if given in ignorance of the right to counsel,

-      an order that Tobiass only be required to respond to specified issues in the course of the reference proceedings.

     The motion filed in the Oberlander matter seeks in two short paragraphs general disclosure pursuant to the principle enunciated in R. v. Stinchcombe (1991) 68 c.c.c. (3d) 1. and nothing more. Obviously, these motions while they may share some common ground envision different issues and seek different results. I cannot accept the suggestion that the underlying issues as they have been framed are the same in all three references particularly when regard is had to the fact that there is no outstanding motion for disclosure in the Dueck matter.

     The other preliminary issue which is said to be identical by the quiet acquiesence of all counsel is the one that underlies the stay application which has

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been filed by the respondents in each file. Although they are based on the same ground, the applications in Tobiass and Dueck are on the face of them dependent on facts and information which are not within the knowledge of the respondents whereas the stay application in the Oberlander case relies on facts known to Mr. Oberlander and/or his counsel and which they are in a position to establish. Quite aside from anything else, it should be clear to anyone with the most basic knowledge of the rules that these motions are bound to meet a different disposition.

     I therefore cannot accept that as matters presently stand, the preliminary issues involved in these references are sufficiently similar to justify their joint management. When proper attention is paid to each pending motion, it becomes apparent that concerns of due process and efficacy will be better addressed if the outstanding preliminary matters are allowed to proceed separately in each case.

     Marc Noël

     Judge

Ottawa, Ontario

October 19, 1997